Citation Nr: 9813028
Decision Date: 04/27/98 Archive Date: 05/08/98
DOCKET NO. 96-08 839A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to a permanent and total disability rating for
nonservice-connected disability pension benefits, to include
on an extra-schedular basis under the provisions of 38 C.F.R.
§ 3.321(b)(2) (1997).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from March 1972 to February
1974.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the May 1994 rating decision of the
San Juan, Puerto Rico Department of Veterans Affairs (VA)
Regional Office (RO), which denied entitlement to a permanent
and total disability rating for nonservice-connected
disability pension benefits, to include on an extraschedular
basis under the provisions of 38 C.F.R. § 3.321(b)(2).
REMAND
The veteran essentially contends that he is unable to work
due to his psychiatric disorder and that, therefore, he is
entitled to nonservice-connected disability pension. He
asserts that he missed a great deal of work due to
hospitalizations and treatment for his psychiatric disorder,
that he had to retire due to his psychiatric disability, and
that his nonservice connected psychiatric disorder is
currently 100 percent disabling. He avers that he is
currently taking antipsychotic and antidepressant
medications. The representative asserts that extraschedular
consideration is warranted under 38 C.F.R. § 3.321(b)(2) and
that this matter should be remanded to the RO for a decision
which contains sufficient reasons or bases regarding the
issue of entitlement to nonservice-connected disability
pension under 38 C.F.R. § 3.321(b)(2).
By rating decision dated in May 1994, the RO denied
entitlement to nonservice-connected disability pension, to
include on an extraschedular basis under 38 C.F.R.
§ 3.321(b)(2). The rating decision noted that the veteran
had chronic schizophrenia, undifferentiated type, competent,
evaluated as 10 percent disabling, and fractured left hand
bones with no sequelae and right frontal scar from
superficial old trauma with no residuals, both evaluated as
zero percent disabling.
The Board notes that the veteran has been hospitalized
several times since 1991 for treatment of psychiatric
disorders. The record also includes numerous outpatient
treatment records which include diagnoses of schizophrenia,
undifferentiated type, dysthymic disorder, major depression,
and atypical psychosis.
In a March 1994 document from the Commonwealth of Puerto Rico
Board of Teachers Retirement, it was noted that the veteran
continued to be disabled, that he was granted retirement due
to physical disability for two years, and that he would have
to submit for a medical evaluation in April 1996. The claims
file does not include the medical evaluation report that the
Board of Teachers Retirement relied on in making its March
1994 determination or the report of any April 1996 medical
evaluation for the Board of Teachers Retirement. The Board
finds that an attempt to obtain any such medical records is
warranted.
In an August 1994 psychiatric evaluation, Dr. R. Carrion
stated that the veteran could not make simple decisions, that
he could not interact with co-workers or supervisors, and
that he could not work. The relevant diagnosis was paranoid
schizophrenia. Dr. Carrion noted that the veteran’s
prognosis was poor and that he could not handle his funds.
At the most recent October 1995 VA psychiatric examination,
the examiner noted that the claims file and some of the
veteran’s medical records were not available for review. The
diagnosis was substance use disorder, alcohol dependence in
alleged remission, and major depression. The examiner noted
that the current global assessment of functioning (GAF) score
was 60.
The veteran was most recently hospitalized at a VA facility
from February 1996 to March 1996 due to reported episodic
loss of contact with reality which occurred every four to
five days and feelings of persecution with auditory
hallucinations. In the discharge summary, it was noted that
the veteran had episodes where he lost contact with reality
during this hospitalization and that his medication had to be
modified. The relevant diagnosis was schizophrenia, chronic,
undifferentiated type. The examiner noted that the veteran
was unemployable, that he was a retired teacher but was
unable to work, and that he could handle funds.
As noted above, the veteran’s last VA psychiatric examination
was in October 1995. The Board notes that 38 C.F.R. § 4.132,
the VA Schedule of Ratings for Mental Disorders, has been
amended and redesignated as 38 C.F.R. § 4.130, effective
November 7, 1996. 61 Fed. Reg. 52695-52702 (October 8,
1996). Under the new regulation, the evaluation criteria
have substantially changed, focusing on the individual
symptoms as manifested throughout the record, rather than on
medical opinions characterizing overall social and industrial
impairment as mild, definite, considerable, severe, or total.
The Board notes that the claims file does not include a
statement of the case or supplemental statement of the case
which includes the old or new rating criteria with respect to
mental disorders.
Based on the new rating criteria and the February to March
1996 VA hospitalization which occurred after the last VA
psychiatric examination, the Board finds that a contemporary
VA examination, in accordance with the newly implemented
diagnostic criteria, would be of extreme probative value in
determining the current severity of the veteran’s psychiatric
disorder.
At the September 1995 personal hearing the veteran testified
that he had been receiving treatment at the VA satellite
clinic in Ponce for approximately one month. Hearing
Transcript (Tr.) at 7, 8. The October 1995 VA psychiatric
examiner noted that the veteran was currently being treated
at the VA satellite clinic in Ponce. The March 1996 VA
hospital discharge summary indicated that the veteran was to
be followed at the Ponce outpatient clinic. The claims file
includes August to September 1995 VA outpatient treatment
records from the Ponce, Puerto Rico VA outpatient clinic.
However, the Board finds that an attempt to obtain all
treatment records from the Ponce VA outpatient treatment
clinic from September 1995 to present is warranted.
In an August 1991 claim, the veteran reported that he had
applied for, intended to apply for or was currently receiving
Social Security Administration benefits. Although he has
subsequently reported that he is not receiving Social
Security Administration benefits, any relevant Social
Security Administration records should be obtained.
In order to ensure that the record is fully developed, this
case is REMANDED to the RO for the following:
1. The RO should obtain from the Social
Security Administration the records
pertinent to the veteran’s claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.
2. The RO should contact the veteran and
request that he identify all treatment he
has received for any disorders, including
any psychiatric disorder, since 1995,
including the names and addresses of all
physicians and facilities that have
treated him. The veteran also should be
asked whether he has any physical
disorders that affect his ability to work
and, if so, he should identify them.
After obtaining appropriate
authorization, the RO should attempt to
obtain the medical records that are not
already in the claims file, specifically
to include all treatment records from the
Ponce, Puerto Rico VA outpatient clinic
dated from September 1995 to present and
all reports of medical evaluation from
the Commonwealth of Puerto Rico Board of
Teachers Retirement. Any new records
obtained should be associated with the
claims folder.
3. The veteran should be afforded a VA
psychiatric examination to determine the
current nature and extent of all mental
disorders. The veteran’s claims folder
and a separate copy of this remand must
be made available to the examiner, the
receipt of which should be acknowledged
in the examination report. All necessary
tests and studies, including appropriate
psychological studies (if determined to
be necessary by the psychiatrist), should
be conducted in order to identify and
describe the psychiatric symptomatology.
The report of examination should contain
a detailed account of all psychiatric
manifestations found to be present and
the entire report of examination,
including the veteran’s complaints,
should be written in English unless such
is impossible. The examiner is requested
to identify the frequency and severity of
all positive findings, as well as to
enumerate all negative symptomatology.
All psychiatric disorders found should be
reported in detail. The examiner must
also comment on the extent to which any
psychiatric disorders affect occupational
and social functioning without
consideration of the effects of alcohol
or drug abuse. The examiner should
provide a written opinion as to the
extent of any psychiatric disorders and
their impact on the appellant’s ability
to work, dissociating the effects of any
alcohol or drug abuse. The examiner
should express an opinion as to which of
the following criteria best describe the
veteran’s psychiatric disability picture
due to psychiatric disorder:
1) Occupational and social
impairment due to mild or
transient symptoms which
decrease work efficiency and
ability to perform occupational
tasks only during periods of
significant stress, or;
symptoms controlled by
continuous medication;
2) Occupational and social
impairment with occasional
decrease in work efficiency and
intermittent periods of
inability to perform
occupational tasks (although
generally functioning
satisfactorily, with routine
behavior, self-care, and
conversation normal), due to
such symptoms as: depressed
mood, anxiety, suspiciousness,
panic attacks (weekly or less
often), chronic sleep
impairment, and mild memory
loss;
3) Occupational and social
impairment with reduced
reliability and productivity
due to such symptoms as:
flattened affect;
circumstantial, circumlocutory
or stereotyped speech; panic
attacks more than once a week;
difficulty in understanding
complex commands; impairment of
short- and long-term memory;
impaired judgment or abstract
thinking; disturbances of
motivation and mood; and
difficulty in establishing and
maintaining effective work and
social relationships;
4) Occupational and social
impairment with deficiencies in
most areas, such as work,
school, family relations,
judgment, thinking, mood due to
such symptoms as: suicidal
ideation; obsessional rituals
which interfere with routine
activities; intermittently
illogical, obscure, or
irrelevant speech; near-
continuous panic or depression
affecting the ability to
function independently,
appropriately and effectively;
impaired impulse control such
as unprovoked irritability with
periods of violence; spatial
disorientation; neglect of
personal appearance and
hygiene; difficulty in adapting
to stressful circumstances
(including work or a work-like
setting); and the inability to
establish and maintain
effective relationships;
5) Total occupational and
social impairment due to such
symptoms as: gross impairment
in thought processes or
communication; persistent
delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting
self or others; intermittent
inability to perform activities
of daily living (including
maintenance of minimal personal
hygiene); disorientation to
time or place; memory loss for
names of close relatives, own
occupation, or own name.
If positive symptoms from more than one
of the above categories are identified,
the examiner is requested to identify
those which are most predominant based on
consideration of the entire contemporary
record and to provide an opinion as to
the level of occupational and social
impairment (1 through 5 above) that most
reflects the veteran’s overall
symptomatology and level of disability
due to psychiatric disorder. A multi-
axial assessment should be conducted, and
there should be a thorough discussion of
Axis IV (psychosocial and environmental
problems) and Axis V (Global Assessment
of Functioning (GAF) score), with an
explanation of the numeric code assigned
as given in DSM-IV. The rationale for
all conclusions should be provided.
4. The veteran should be afforded a VA
general medical examination to determine
the nature and extent of all current
physical disabilities if deemed necessary
on the basis of any physical disorders
claimed by the veteran to affect his
ability to work or that are shown in the
additional evidence obtained. The
veteran’s claims folder should be made
available to the examiner, the receipt of
which should be acknowledged in the
examination report. The examination
should include all appropriate diagnostic
tests and studies. All complaints or
symptoms having a medical cause should be
covered by a definite diagnosis. The
examiner should provide a written opinion
as to the extent of each of the veteran’s
disabilities and their impact on his
ability to work.
5. The RO should then review the
veteran’s claim. If the examination
reports are not responsive to the Board’s
instructions, they should be returned to
the examiners as inadequate.
6. The claim should then be
readjudicated with consideration of all
pertinent law, regulations, to include
38 C.F.R. § 3.321(b)(2) and the mental
disorders rating criteria in effect prior
to and as of November 7, 1996, and Court
decisions. If the veteran’s claim
remains in a denied status, he and his
representative should be provided with a
supplemental statement of the case, which
includes all applicable laws and
regulations, to include all old and new
mental disorders rating criteria, and a
full discussion of action taken on the
veteran’s claim, consistent with the
Court’s instructions in Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The
applicable response time should be
allowed.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JANE E. SHARP
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
- 2 -